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State v. Salas

Court of Appeals of New Mexico

April 20, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee/Cross-Appellant,
v.
LORENZO SALAS, Defendant-Appellant/Cross-Appellee.

         APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Judith K. Nakamura, District Judge

          Hector H. Balderas, Attorney General Santa Fe, NM Elizabeth Ashton, Assistant Attorney General Albuquerque, NM for Appellee

          Bennett J. Baur, Chief Public Defender Sergio J. Viscoli, Appellate Defender Kathleen T. Baldridge, Assistant Appellate Defender Santa Fe, NM for Appellant

          OPINION

          JAMES J. WECHSLER, Judge

         {1} Defendant Lorenzo Salas appeals from his conviction for battery on a peace officer, contrary to NMSA 1978, Section 30-22-24 (1971). Defendant raises numerous alleged errors arising from his trial, probation revocation hearing, and sentencing as a habitual offender.

         {2} As to his trial, Defendant argues that the district court erred by denying his (1) motion to dismiss due to the State's failure to collect potentially exculpatory evidence, (2) request for a mistrial due to alleged witness tampering, (3) request to poll the jury for evidence of juror misconduct, and (4) request for a mistrial due to prosecutorial misconduct. Defendant also argues that (1) the district court issued an impermissible shotgun jury instruction and (2) substantial evidence does not support a finding of guilt as to each element of the charged offense. As to his probation revocation hearing, Defendant argues that the district court violated his procedural due process rights. Finally, as to his habitual offender hearings (sentencing hearings), Defendant argues that the district court erred by conducting a subsequent sentencing hearing (1) in violation of his right to be free from double jeopardy and (2) in violation of his right to due process. Defendant also argues that (1) he received ineffective assistance of counsel and (2) substantial evidence does not support a finding that he was the person convicted of the prior felonies as alleged in the supplemental criminal information.

         {3} The State filed a cross-appeal arguing that the district court erred in finding that the State did not meet its burden to prove that Defendant was the individual identified in the supplemental criminal information at Defendant's initial sentencing hearing. The State did not brief this argument on appeal, and it is, therefore, abandoned. See State v. White, 1994-NMCA-084, ¶ 1, 118 N.M. 225, 880 P.2d 322 ("Issues raised at earlier stages of the appeal but not briefed are deemed abandoned.").

         {4} For the reasons discussed herein, we conclude that each of Defendant's arguments is without merit. We therefore affirm the district court.

         BACKGROUND

         {5} On October 24, 2011, Defendant reported to the Bernalillo County Metropolitan Detention Center (MDC) to serve a twenty-four hour remand sentence. During booking, Defendant verbally abused booking technician Jessica Alvarez and threw a pen at her. The pen struck Alvarez in the chest. Alvarez reported Defendant's conduct to her immediate supervisor and to corrections officer Kavin Woodard. Woodard sought out Defendant in the men's general holding cell (Cell Five). Woodard found Defendant lying on a concrete bench. Defendant rose and approached Woodard in an aggressive manner, which led Woodard to remove Defendant from Cell Five and to place him in a solitary cell (Cell One). During the walk between the cells, Woodard held both Defendant's hands behind his back. Woodard released one of Defendant's hands from his grasp after entering Cell One, at which point Defendant head-butted Woodard in the mouth. The force of the blow chipped one of Woodard's teeth and lacerated his lip. Corrections officers, including Woodard, Christina Garcia, Larry Smith, and Brian Romm, regained control of Defendant and placed him in restraints. Both Defendant and Woodard received medical attention.

         {6} MDC personnel filed a report with the Bernalillo County Sheriff's Office (BCSO). Deputy Phillip Gonzales of the BCSO reviewed the report, including the victim statement and photographs attached to the report. Deputy Gonzales then filed a criminal complaint against Defendant for aggravated battery on a peace officer.

         {7} Defendant's trial occurred in January 2014. Witnesses for the State included Alvarez, Woodard, Garcia, Romm, and Deputy Gonzales. Defendant testified on his own behalf. The jury found Defendant guilty of battery on a peace officer. The district court sentenced Defendant to eighteen months incarceration but gave him credit for time served and ordered probation for the remaining time. The State filed a supplemental criminal information, alleging that Defendant was a habitual offender under NMSA 1978, Section 31-18-17 (2003), and seeking enhancement of Defendant's sentence.

         {8} On December 5, 2014, the district court conducted Defendant's initial sentencing hearing. The State's evidence included "case information pages, " which contained inconsistent identifying information about Defendant and certified copies of fingerprint cards from 2004 and 2008 arrests. The evidence did not, however, include a certified copy of Defendant's fingerprint card from the current case. The district court ruled that the State's evidence was not sufficient to prove that Defendant was the person convicted of the prior felonies as alleged in the supplemental criminal information and denied the State's request for sentencing enhancement.

         {9} At Defendant's December 16, 2014 probation violation hearing, the State requested a subsequent sentencing hearing. Defendant objected, arguing that double jeopardy prohibited retrial of his habitual offender status.[1] The district court scheduled concurrent hearings to address Defendant's alleged probation violation and sentencing as a habitual offender for January 20, 2015. The scheduled hearings ultimately occurred on February 11, 2015 and February 18, 2015. The district court ruled that Defendant violated his probation and sentenced him to one hundred forty-five days incarceration. The district court then ruled that Defendant was a habitual offender and enhanced his sentence by four years as required under Section 31-18-17.

         {10} Both the State and Defendant appealed issues arising from Defendant's trial, his probation revocation hearing, and his sentencing hearings. This Court consolidated these issues on appeal. In lieu of a comprehensive recitation of every event that occurred during Defendant's trial and subsequent hearings, we discuss events relevant to Defendant's appellate arguments as necessary below.

         THE TRIAL

         {11} As to his trial, Defendant argues that any of five alleged errors by the district court requires reversal of his conviction. We review four of these alleged errors for abuse of discretion and the fifth for fundamental error. Defendant additionally argues that substantial evidence did not support his conviction. A district court abuses its discretion if its ruling is "clearly against the logic and effect of the facts and circumstances before the court." State v. Lucero, 1999-NMCA-102, ¶ 32, 127 N.M. 672, 986 P.2d 468 (internal quotation marks and citation omitted). "Parties alleging fundamental error must demonstrate the existence of circumstances that shock the conscience or implicate a fundamental unfairness within the system that would undermine judicial integrity if left unchecked." State v. Cunningham, 2000-NMSC-009, ¶ 21, 128 N.M. 711, 998 P.2d 176 (internal quotation marks and citation omitted).

         Lost or Destroyed Evidence

         {12} Defendant argues that the district court erred in denying his motion to dismiss due to lost or destroyed evidence. "The denial of a motion to sanction by dismissal or suppression of evidence is reviewed for abuse of discretion." State v. Duarte, 2007-NMCA-012, ¶ 3, 140 N.M. 930, 149 P.3d 1027.

         {13} Although alternate tests apply under circumstances in which collected evidence is "lost, destroyed, or inadequately preserved, " State v. Ware articulates the New Mexico test for cases in which the evidence at issue is never collected. 1994-NMSC-091, ¶ 11, 118 N.M. 319, 881 P.2d 679. This test first requires that "the evidence that the [s]tate failed to gather from the crime scene must be material to the defendant's defense." Id. ¶ 25. If the evidence is material, the district court must determine whether "the failure to collect the evidence was done in bad faith, [or] in an attempt to prejudice the defendant's case[.]" Id. ¶ 26. Such a finding may result in suppression of the evidence. Id.

         {14} The booking area of MDC is equipped with a video surveillance system, which records with cameras that continuously pan the area. There are no cameras inside either Cell One or Cell Five. Neither MDC personnel nor Deputy Gonzales requested that any potential recording of the incident at issue be reviewed or preserved, and the video surveillance system automatically deleted any relevant recording after six months. Defendant filed a pre-trial motion to dismiss the charge against him due to the State's "destruction of exculpatory evidence." The district court denied the motion, ruling that the State's failure to gather the evidence was not negligent or in bad faith.

         {15} Defendant presented no evidence that the surveillance system captured video of either the alleged battery or the immediately preceding interaction. However, even if the surveillance system did capture material evidence, Defendant does not direct this Court to any indication that the failure to collect such evidence was the result of bad faith or an attempt to cause prejudice to Defendant.

         {16} Deputy Gonzales testified that his investigation comported with BCSO's standard procedure for incidents at MDC, specifically stating that battery on a peace officer is not a charge that requires an in-person investigation. Deputy Gonzales received Woodard's written statement and the accompanying photographs. He did not, apparently, contemplate the possibility that MDC withheld exculpatory evidence. Even if Deputy Gonzales should have investigated the possibility that exculpatory video evidence existed, his failure to do so was no more than negligent. See id. (describing the failure to collect evidence as grossly negligent if the investigating officer "act[s] directly contrary to standard police investigatory procedure").

         {17} "When the failure to gather evidence is merely negligent, an oversight, or done in good faith, sanctions are inappropriate, but the defendant can still examine the prosecution's witnesses about the deficiencies of the investigation and argue the investigation's shortcomings against the standard of reasonable doubt." Id. Defendant cross-examined Deputy Gonzales at trial with respect to the substance and quality of his investigation. Given this cross-examination of Deputy Gonzales, the district court's denial of Defendant's motion to dismiss was not "clearly against the logic and effect of the facts and circumstances before the court." Lucero, 1999-NMCA-102, ¶ 32 (internal quotation marks and citation omitted).

         Witness Tampering

         {18} Defendant argues that the district court erred in denying his request for a mistrial due to witness tampering in violation of Rule 11-615 NMRA. "We review the [district] court's denial of a request for a mistrial for abuse of discretion." Lucero, 1999-NMCA-102, ¶ 32.

         {19} Rule 11-615 provides that, if requested, the "court must order witnesses excluded so that they cannot hear other witnesses' testimony[.]" The purpose of the rule is to "prevent witnesses from tailoring their testimony to the testimony of other witnesses." State v. Ruiz, 1995-NMCA-007, ¶ 22, 119 N.M. 515, 892 P.2d 962. However, even assuming that the conduct in the current case implicates Rule 11-615, "the choice of remedy [for a violation of the rule] is within the sound discretion of the [district] court." State v. Reynolds, 1990-NMCA-122, ¶ 28, 111 N.M. 263, 804 P.2d 1082.

         {20} In Reynolds, the defendant alleged that one of the state's witnesses, who had already testified, discussed the trial with another of the state's witnesses, who had not yet testified. Id. ¶ 25. The district court held a hearing on the allegations, denied the defendant's request for a mistrial, and tailored alternate sanctions. Id. ¶ 26. This Court affirmed, holding that although a mistrial is a possible remedy for a violation of Rule 11-615, other potential remedies include "striking testimony, citing for contempt, instructing the jury, permitting examination of the witnesses by counsel concerning how their testimony may have been tainted, and permitting argument by counsel." Reynolds, 1990-NMCA-122, ¶ 28.

         {21} Alvarez testified that a secretary employed by the district attorney's office provided her with a copy of Woodard's incident report and that she read portions of the report prior to testifying. She additionally testified that she only read the first three lines of Woodard's report before she stopped reading and that, other than the date of the incident, the report did not serve to refresh her memory of the incident. Defendant requested a mistrial, claiming that Alvarez's reading of Woodard's incident report was akin to communication between witnesses. The district court denied this request.

         {22} Reynolds provides that cross-examination is a possible remedy for a violation of Rule 11-615. Reynolds, 1990-NMCA-122, ¶ 28. The district court gave Defendant an opportunity to cross-examine Alvarez as to the clarity with which she remembered the incident independent of Woodard's report. Defendant does not argue on appeal that cross-examination was an insufficient remedy. As such, the district court's choice of this remedy was not "clearly against the logic and effect of the facts and circumstances before [it.]" Lucero, 1999-NMCA-102, ¶ 32 (internal quotation marks and citation omitted).

         Jury Misconduct

         {23} Defendant argues that the district court erred by denying his request to poll the jury for evidence of misconduct. Although incompletely developed on appeal, we interpret this argument to address the possibility that the jurors discussed the case amongst themselves in violation of the district court's oral instructions. This Court reviews a district court's refusal to voir dire a jury under such circumstances for abuse of discretion. State v. Case, 1984-NMSC-012, ¶ 24, 100 N.M. 714, 676 P.2d 241.

         {24} "If there is no evidence of probable juror impropriety, the [district] court does not abuse its discretion by refusing to voir dire the jury." Id. Additionally, we presume that jurors adhere to instructions not to ...


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